A search of the New York City Department of Correction inmate database on the afternoon of September 21st found 120 people with the last name “Jones.” Only a quarter had been convicted of crimes and were serving sentences. The rest were waiting.
Like 70 percent of the roughly 13,000 people held in New York City’s jails on a typical day, most of the Joneses were pretrial detainees, locked up but presumed innocent. A substantial number of them were remanded by a judge without bail being set. But most were in jail only because they could not afford their bail.
Some were held on large bail amounts—inmate G. Jones, accused of felony weapons possession, was held on $75,000—but in many cases the price of liberty was small. E. Jones, charged with a class B misdemeanor drug count, had been inside for nine days on $500 bail. J. Jones, accused of petit larceny, was on his 15th day of pretrial detention on $750 bail. If the rest of the city’s jail system were keeping up with the Joneses, it would mean that roughly one in 10 inmates was behind bars on bail of $1,500 or less.
New York State law allows a judge to set bail only if it is necessary—and to the amount required—to make sure a defendant appears in court. Bail is not supposed to punish. It’s not designed to protect the public from people deemed dangerous. The whole purpose of bail is to get people out of jail while ensuring they show up for court. Yet for tens of thousands of defendants in New York City, unaffordable bail gets them locked up before they are convicted of anything.
That costs the taxpayer money, disrupts the lives of defendants and can even pervert justice by thwarting the chances of the innocent to prove their case. Detained defendants are at a disadvantage in preparing their defense and are more likely to get convicted and be sentenced to jail. They are also under greater pressure to plead guilty even if they believe they are innocent, since staying in jail to fight one’s case takes a steep toll. Detainees weighing a guilty plea “make a decision that’s not really about guilt or innocence,” says Zeke Edwards or the Innocence Project. “It’s about in or out.”
The fall issue of City Limits Investigates, Prisoners Dilemma: How NYC’s Bail System Puts Justice On Hold, looks at the city’s bail system and sees a complex and shifting picture involving indigent defendants, young prosecutors, overworked public defenders and arraignment judges who must make a quick, crucial decision based on scant, incomplete and sometimes wrong information. Whatever the factors that contribute to it, however, the reality is that bail leads to the incarceration of thousands of people each year who have not been found guilty.
New York City pioneered efforts at bail reform in the 1960s; as a result, most defendants in the five boroughs are released without bail before trial. But because of the huge volume of arrests in New York City—rising even as crime falls, and increasingly dominated by low-level offenses—some 52,000 people each year have bail set in their criminal cases. While some of them do post bail and get out of jail, 42 percent never do, and not necessarily because they’re facing seven-figure bails: In a year’s time, half of those who don’t make bail are held on $1,000 or less. They’ve fallen into a trap: The bail is too high for them to pay because they are poor, but too low to make it worthwhile for a commercial bail bond agent to bother posting.
There’s wide agreement that something needs to be done about bail. The question is what. Several bills before the state assembly this year would further restrict defendants’ access to bail. In the wake of publicized cases of bailed defendants committing heinous crimes, some legislators think New York State needs to follow other states’ example and adopt a form of pretrial detention designed to protect public safety.
On the other hand, the Bronx Defenders, an indigent defense organization, is launching a Freedom Fund to pay low bails and release defendants. Meanwhile, court systems like Washington, D.C.’s use a “release under supervision” program that keeps tabs on defendants, making sure they show up for court without charging them a fee for their liberty.
Skeptics say that approach wouldn’t work here; the system is simply too large, they argue, for anything other than bail to work. “Is there any other way?” asks Bar Association President Barry Kamins. “If there is, I don’t think they’ve found it yet. Other than financial obligations, I don’t know of another way to ensure that someone will come back. I wish there were another way, but that’s the system.”
A major obstacle to reforming bail is the lack of public understanding about what it’s for. Cases like this summer’s murder of three Newark college students, in which an illegal immigrant who was out on $150,000 bail has been accused, triggered familiar complaints about soft judges setting bad people free on bail. “I tell the judges, ‘Any bail a defendant can make, in the press, that’s a low bail,'” jokes David Bookstaver, spokesman for the New York State court system. Bail, he repeats like a mantra, is for one purpose: to secure the defendant’s appearance in court.
But there is a disconnect, critics say, between what bail is supposed to be for and how it really works. “Bail is a form of preventive detention for poor people,” says Robert Gangi, executive director of the jails watchdog Correctional Association of New York. “They’re mainly detained because they’re poor. That’s an important understanding to have: Whatever the theoretical justification for bail, that’s what it really is.”
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